What is Mediation Law?
Mediation law refers to a form of alternative dispute resolution (ADR) in which the parties to a lawsuit meet with a neutral third-party in an effort to settle the case. The third-party is called a mediator. It is this person’s job to listen to the evidence, help the litigants come to understand each other’s viewpoint regarding the controversy, and then facilitate the negotiation of a voluntary resolution to the case. The purpose of mediation is to avoid the time and expense of further litigation by settling a lawsuit early on in the process.
Unlike other forms of ADR, mediation is not binding on the parties. In fact, thinking about a mediation proceeding in terms of whether the parties will be bound by the outcome suggests a misunderstanding of the nature of mediation. The mediator’s role is not to reach a decision – it is to help the parties reach their own decision. There is no guarantee that mediation will produce a settlement agreement resolving the case. In fact, in many cases mediation will leave the litigants no closer to reaching a settlement afterwards than they were beforehand.
If mediation can turn out to be a waste of time for both sides, then why do so many litigants freely agree to attend (and to pay the associated fees)? The answer is that when mediation is successful, it can save huge sums of money. Litigation is expensive. For instance, taking a personal injury case all the way to trial can easily cost $100,000 or more. On the other hand, the parties can pay a mediator a couple hundred dollars an hour, with a very real chance that the case will be resolved by the end of the day.
Appropriate Cases for Mediation
People facing the prospect of litigation often wonder if their case is appropriate for mediation. Nearly any type of case can be mediated, but the best cases are those in which the parties are unlikely to reach a settlement agreement on their own. After all, if the parties and their attorneys are capable of reaching a settlement, there is no reason to pay a mediator to get involved. Conversely, if for some reason there is absolutely no possibility of a settlement, the parties may want to focus on preparing for trial instead. This is especially true since mediation may take away the element of surprise by disclosing a party’s best trial arguments in advance.
However, when settlement is at least a remote possibility, mediation can bring the parties together and get the deal done. Common types of lawsuits that end up in mediation include breach of contract disputes, injury and tort cases, wrongful termination claims, family law matters, and more. Cases that are not appropriate for mediation include DUI and criminal charges, bankruptcy, deportation and related immigration matters, disability appeals, and any other types of cases prosecuted by the government. Cases that do not involve an active dispute, such as estate planning matters or real estate transactions, are also not good candidates.
Choosing the Right Mediator
The best mediator for a particular case will be a law-trained professional who is familiar with the subject matter of the case. Most often, parties should seek out a current or retired attorney with experience litigating similar disputes. It is important to realize, though, that the best attorneys do not always make the best mediators. Successful trial lawyers are known for being aggressive, while successful mediators are known for their ability to help other lawyers calm down and reach a consensus. This distinction is important. For help locating a qualified mediator, contact the local state bar association for a referral.
What to Expect During Mediation
Mediation itself is a rather informal proceeding. First, the parties and their attorneys will meet together with the mediator, usually in a conference room at the mediator’s office. The attorneys for each side will make a short opening presentation, after which the mediator usually splits up the two sides into separate offices or meeting rooms. At this point the mediator will visit with each side individually. The mediator will offer his or her thoughts on case, and the parties can respond by sharing information with the mediator in confidence, or with instructions to pass certain information on to the other side. Moving back and forth between the two rooms, the mediator will convey the parties’ settlement offers and hopefully facilitate a compromise.
Consult with an Attorney Today
If you are involved in a lawsuit that is headed toward mediation, you need to speak with an attorney who is trained in this area of the law. You will be able to get answers to specific questions about your case, and learn how mediation is conducted by professionals in your vicinity.
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Articles About Mediation Law
- How Mediation Can Help Resolve Complex Corporate DisputesMediation is often the best manner to resolve conflict when there is a dispute or argument between two parties. When a corporation has a disagreement about a transaction, product, service or other matter, it may be most beneficial to resolve the concern through mediating the problem with the person or entity.
- Why Divorce Mediation Might Not WorkCouples do not always agree on everything when they are considering a divorce.
- Considerations in Settling a California Dispute[There are] advantages of filing a lawsuit, even where you know from the outset that the other party will likely agree to settle, so you can use a “Stipulated Judgment”, under CA Code of Civ. Procedure § 664.6 to aid in collection efforts if the settlement is not timely paid.
- Winning Mediation StrategiesNext to trial, mediation can be the most crucial day of litigating your case. That’s why it's important to spend time and effort having the case "trial ready" prior to even agreeing to mediate.
- What Is a Motion to Compel Mediation?Most judges require mediation before a contested family law hearing or a trial because it is so successful. Most mediations result in a mediated settlement agreement, or “M.S.A.”
- What Mediation Can Do for You in Your Family Law CaseMediation is a fast-growing area that first began changing the face of litigation in Texas in the late 1980's. Along with other forms of alternative dispute resolution, it gives family law clients another option in handing their case. Here are some interesting facts about mediation that you may not know.
- How to Prepare for Divorce MediationDivorce mediation can be long, boring, tiresome, and emotionally draining. It can also be a tremendous relief when a mediated settlement agreement (M.S.A.) is signed. Giving the time and effort to prepare is essential to increase the chances of a successful mediation.
- Business Disputes in San DiegoBringing a Business Lawsuit Before a San Diego Court Can Take a Year or More. How are business disputes managed in San Diego? What are the legal and practical realities that guide these cases? What should you look for in a business dispute resolution attorney? The first fact to consider is this: the vast majority of business disputes are settled prior to going to trial.
- Resolving Business Partnership DisputesLitigation Between Co-Owners or Members in an LLC or Partnership Resolving business partnership disputes quickly and efficiently can quite literally make or break a business. When co-owners, partners or members in an LLC are involved in a dispute or litigation the entire company can be at risk. Energy that should be devoted to critical business analysis and decision making is distracted by disagreement that can quickly devolve into an open feud.
- 4 Common Divorce Mediation QuestionsThese questions are commonly asked during a divorce mediation.
- All Articles About Mediation
Mediation Law - US
- Facts About Mediation
Mediation is a form of Alternative Dispute Resolution (ADR) that is offered by the U.S. Equal Employment Opportunity Commission (EEOC) as an alternative to the traditional investigative or litigation process. Mediation is an informal process in which a neutral third party assists the opposing parties to reach a voluntary, negotiated resolution of a charge of discrimination.
- Mediation - Alaska Bar Association
Mediation is a confidential and informal way to resolve a dispute with the help of a neutral third person (mediator). The mediator works with both parties to help them reach a mutually agreeable solution to their differences. Mediation proceedings are confidential and informal. The mediator can’t issue subpoenas or swear witnesses. The mediator can’t force the parties to resolve their differences. But the mediator can help the parties reach a solution agreeable to both of them.
- Mediation - National Mediation Board (NMB)
The purpose of mediation under the Railway Labor Act is to foster the prompt and orderly resolution of collective bargaining disputes in the railroad and airline industries.
- Mediation - The U.S. Equal Employment Opportunity Commission
Mediation is a fair and efficient process to help you resolve your employment disputes and reach an agreement. A neutral mediator assists you in reaching a voluntary, negotiated agreement. Choosing mediation to resolve employment discrimination disputes promotes a better work environment, reduces costs and works for the employer and the employee.
- Mediation - Wikipedia
Mediation, a form of alternative dispute resolution (ADR), aims to assist two (or more) disputants in reaching an agreement. The disputes may involve states, organizations, communities, individuals or other representatives with a vested interest in the outcome. Mediators use appropriate techniques and/or skills to open and/or improve dialogue between disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed matter.
- What is Mediation?
Mediation is a voluntary and confidential way to resolve disputes without giving the decision-making power to someone else (like a judge). It involves sitting down with the other side in the dispute and a third-party who is neutral and impartial (the mediator). The mediator helps the parties identify the important issues in the dispute and decide how they can resolve it themselves. The mediator doesn't tell them what to do, or make a judgment about who's right and who's wrong. Control over the outcome of the case stays with the parties.